In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-3277, 03-3278, 03-3279,
03-3280, 03-3281 & 03-3865
TEXAS INDEPENDENT PRODUCERS AND
ROYALTY OWNERS ASSOCIATION, et al.,
Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
____________
Petitions for Review of an Order of the
Environmental Protection Agency
No. 02-OW-55
____________
ARGUED DECEMBER 7, 2004—DECIDED JUNE 13, 2005
____________
Before BAUER, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. On July 1, 2003, the
Environmental Protection Agency issued its “Final National
Pollutant Discharge Elimination System General Permit for
Storm Water Discharges From Construction Activities”
(“General Permit”). 68 Fed. Reg. 39,087 (July 1, 2003).
2 Nos. 03-3277, et al.
Several organizations filed petitions for review of this final
agency action, and those petitions were consolidated before
this court. For the reasons that follow, we hold that the
General Permit does not violate the Clean Water Act’s
requirements for public notice and public hearing. We also
hold that in issuing the General Permit, the Environmental
Protection Agency complied with the requirements of the
Endangered Species Act. However, petitioner Natural
Resources Defense Council, Inc., lacks standing to challenge
other aspects of the General Permit, and accordingly we
dismiss the remainder of its petition. As to the remaining
petitioners who represent the interests of the oil and gas
industries, we stay consideration of their challenges to the
General Permit pending resolution by the Fifth Circuit as to
whether those petitioners are required to obtain a permit in
the first instance.
I.
1
Congress enacted the Clean Water Act (“CWA” or “Act”)
“to restore and maintain the chemical, physical, and biolog-
ical integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
The CWA prohibits the “discharge of any pollutant” except
in compliance with the Act’s provisions. 33 U.S.C. § 1311(a).
Under the Act’s provisions, the discharge of pollutants into
navigable waters is illegal unless authorized by a permit
issued pursuant to § 402 of the Act. 33 U.S.C. § 1342. Section
402 established the National Pollutant Discharge Elimina-
tion System (“NPDES”), and requires dischargers to obtain
1
An appendix to this opinion provides a comprehensive list of
the numerous abbreviations used throughout the opinion.
Nos. 03-3277, et al. 3
a permit from the Environmental Protection Agency
2
(“EPA”) or an authorized state. 33 U.S.C. § 1342(a)(1), (b).
The NPDES permitting system originally used individual
permits, which was feasible for regulating discharges from
wastewater facilities or industrial plants. However, by the
1980’s it became clear that the individual permitting process
was unworkable to regulate storm water discharges which
can occur virtually anywhere. 56 Fed. Reg. 40948, 40949-50
(Aug. 16, 1991). Congress responded in 1987 by adding
§ 402(p) to the CWA. 33 U.S.C. § 1342(p). This section
established a two-step phased approach to regulating storm
water discharges. See 33 U.S.C. § 1342(p).
In Phase I, Congress required NPDES permits for storm
water discharges from “industrial activities,” 33 U.S.C.
§ 1342(p)(3)(A), defined as construction activities involving
five or more acres, as well as discharges from certain large
municipal storm sewer systems. 55 Fed. Reg. 47990, 48066
(Nov. 16, 1990). To implement the permit requirement for
Phase I, the EPA decided to use a general permit system, as
opposed to a system requiring individual permits for each
construction activity. 55 Fed. Reg. 47,990, 48005-48006 (Nov.
16, 1990). With a general permit, the EPA issues a permit for
specific types of activities and establishes specific rules for
complying with the permit. Then, rather than apply for an
individual permit, operators must file a Notice of Intent
(“NOI”) stating that they plan to operate under the general
permit, and absent a negative ruling by the EPA, discharges
that comply with the terms of the general permit are
automatically authorized. The EPA uses a general permit
2
“The EPA administers the NPDES program in each state unless
the EPA previously authorized a state program to issue NPDES
permits.” Am. Paper Inst., Inc. v. EPA, 890 F.2d 869, 871 (7th Cir.
1989) (citing 33 U.S.C. § 1342(b)).
4 Nos. 03-3277, et al.
system to assure “adequate environmental safeguards . . .
without the administrative and resource burdens involved
in an individual permit issuance.” 56 Fed. Reg. at 40961. The
EPA issued its first general permit for construction-related
storm water discharges in 1992, 57 Fed. Reg. 41176 (Sept. 9,
1992), and proposed a revised general permit in 1997. 62 Fed
Reg. 29786 (June 2, 1997). Neither of these general permits
is at issue in this case.
In preparation for Phase II, the EPA, as directed by
Congress, studied all remaining storm water discharges and
established “procedures and methods to control storm
water discharges to the extent necessary to mitigate impacts
on water quality.” 33 U.S.C. § 1342(p)(5). Then, in 1999, the
EPA issued its Phase II storm water rules, designating as
Phase II sources small construction sites (one to five acres),
smaller municipalities, and additional sources that might be
designated on a case-by-case basis. 64 Fed. Reg. 68722 (Dec.
8, 1999); 40 C.F.R. § 122.26(b)(15).
On December 20, 2002, the EPA proposed a third General
Permit for storm water discharges from both large and small
3
construction sites. 67 Fed. Reg. 78116 (Dec. 20, 2002). The
General Permit applies only in those jurisdictions where the
EPA has not authorized the State or Indian Tribe to admin-
ister its own NPDES permitting program. These jurisdic-
3
Although the EPA imposed the NPDES permitting require-
ments on small construction sites (one to five acres) it was not
required to do so by statute. Rather, Congress merely directed the
EPA in Phase II to issue comprehensive regulations addressing
additional discharges as necessary, by “performance standards,
guidelines, guidance, and management practices and treatment
requirements, as appropriate.” 33 U.S.C. § 1342(p)(6). Accord-
ingly, the EPA was not required to subject the smaller construc-
tion sites to the terms of the General Permit at issue here.
Nos. 03-3277, et al. 5
tions include Massachusetts, New Hampshire, Idaho, New
4
Mexico, Alaska, and certain tribal lands. 33 U.S.C. § 1342(c).
After holding a series of public meetings and considering
public comments, the EPA published notice of the final
General Permit on July 1, 2003. 68 Fed. Reg. 39087.
The final General Permit issued by the EPA requires
operators to submit an NOI to be covered by the General
Permit, and mandates that a responsible corporate official
certify the basis for eligibility for such coverage. General
Permit, Appendix G at 11A.1. The General Permit also
requires that the operator create, maintain, and implement
a site-specific Storm Water Pollution Prevention Plan
(“SWPPP”), which must also be certified by a corporate offi-
cial. General Permit 3.13; General Permit, Appendix G at
11A.1. The discharger must further implement best manage-
ment practices (“BMP”) necessary to comply with water
quality standards, assure weekly site inspections, and docu-
ment those inspections, including detailing weather condi-
tions. See General Permit 4.5A (construction operators must
“select, install, and maintain BMPs at your construction
site” that minimize pollutants in the discharges as necessary
to meet applicable water quality standards); General Permit
3.10.A (detailing requirements for inspections).
Shortly before it published the final regulation for
the General Permit, the EPA issued 68 Fed. Reg. 11325
(March 10, 2003). That final rule provided that “[d]ischarges
associated with small construction activity at such oil and
gas sites will require permit authorization by March 10,
4
The EPA also maintains that the General Permit applies to cer-
tain construction activities associated with oil and gas exploration
in the States of Oklahoma and Texas.
6 Nos. 03-3277, et al.
5
2005.” 68 Fed. Reg. at 11330. On June 9, 2003, several
organizations representing business interests in the oil and
gas industry (“Oil and Gas Petitioners”) filed a petition
challenging that regulation in the Fifth Circuit. In their
petition, the Oil and Gas Petitioners claimed that the EPA
lacks authority to require storm water discharge permits for
oil and gas construction activities based on § 402(l)(2) of the
CWA. In § 402(l)(2), Congress expressly prohibited the EPA
from requiring a § 402 permit for storm water discharges for
oil and gas activities unless the discharges were contami-
nated by contact with materials located on the site of such
6
operations. 33 U.S.C. § 1342(l)(2). That petition is still
pending before the Fifth Circuit. See Indep. Petro v. EPA, No.
03-60506 (5th Cir. oral argument Jan. 31, 2005).
In addition to challenging the EPA’s proposed final rule,
arguing that they are exempt from the permit requirements,
the Oil and Gas Petitioners filed a petition for review of the
5
The EPA has since postponed the effective date to June 12,
2006. 70 Fed. Reg. 11560 (March 9, 2005).
6
Section 402(l)(2) provides:
The Administrator shall not require a permit under
this section, nor shall the Administrator directly or
indirectly require any State to require a permit, for
discharges of storm water runoff from mining opera-
tions or oil and gas exploration, production, processing,
or treatment operations or transmission facilities,
composed entirely of flows which are from conveyances
or systems of conveyances (including but not limited to
pipes, conduits, ditches, and channels) used for collect-
ing and conveying precipitation runoff and which are
not contaminated by contact with, or do not come into
contact with any overburden, raw material, intermediate
products, finished product, byproduct, or waste prod-
ucts located on the site of such operations.
Nos. 03-3277, et al. 7
terms of the General Permit in the Fifth Circuit. The Natural
Resources Defense Council (“NRDC”), an environmental
advocacy organization, also filed a petition for review of the
General Permit. That petition was filed before this court.
The Oil and Gas Petitioners’ petition was consolidated with
the NRDC petition pending in this court, and leave was
granted the National Association of Home Builders, the
Wisconsin Builders Association, and the Associated General
Contractors of America (collectively “Builder Groups”), to
intervene in support of the General Permit regulation.
II.
On appeal, petitioner NRDC raises three main arguments.
First, the NRDC argues that the General Permit violates the
mandates of the CWA by “authorizing the discharge of
pollutants without ensuring that the discharge will meet the
water quality and technology requirements of the CWA.”
Second, the NRDC challenges the “General Permit’s failure
to mandate public availability of the NOI and the SWPPP,
as well as its failure to provide the public with the opportu-
nity for a public hearing on the NOI and the SWPPP. . . .”
Third, the NRDC claims that the General Permit violates the
Endangered Species Act (“ESA”). 16 U.S.C. §§ 1531, et seq.
For their part, the Oil and Gas Petitioners first reiterate
their position that the storm water permit requirements do
not apply to construction activities in the oil and gas in-
dustry. The Oil and Gas Petitioners maintain, however, that
in this appeal, they are not challenging the EPA’s decision
that they must obtain storm water discharge permits, as that
question is currently pending before the Fifth Circuit.
Rather, the Oil and Gas Petitioners assume, for purposes of
this appeal, that they must obtain a permit, and instead they
challenge the requirements of the General Permit estab-
8 Nos. 03-3277, et al.
lished by the EPA in 68 Fed. Reg. 39,087. Specifically, the Oil
and Gas Petitioners argue that the EPA’s definition of
“common plan” contained in the General Permit is so broad,
ambiguous, and vague that it violates their rights to due
process because they do not know if they need to apply for
a General Permit. The Oil and Gas Petitioners also argue
that the EPA’s definition of “final stabilization” is too
vague. Alternatively, the Oil and Gas Petitioners argue that
the EPA’s definitions of “common plan” and “final stabili-
zation” are arbitrary and capricious because the definitions
do not take into account the differences in construction
activities related to oil and gas exploration and conventional
residential and commercial activities.
The State of Louisiana’s Department of Natural Resources,
the Railroad Commission of the State of Texas, and the State
of Oklahoma’s Corporation Commission filed amici curiae
briefs in support of the Oil and Gas Petitioners. The amici
support the Oil and Gas Petitioners’ claims that the EPA
acted arbitrarily and capriciously in failing to tailor the
permit criteria to construction activities in the oil and gas
industries. The amici also highlight the importance of the oil
and gas industries to their States’ economies, and stress that
their States currently address environmental concerns
related to the oil and gas industry.
In the cross-fire is the EPA, which maintains the middle
ground, asserting that it acted reasonably in adopting the
General Permit and that the regulations are neither too
harsh nor too lax. The Builders Group supports the EPA’s
position, submitting a brief as Intervening Respondents to
oppose the claims asserted by the NRDC. We begin by ad-
dressing the arguments presented by the NRDC, and then
consider the Oil and Gas Petitioners’ claims.
Nos. 03-3277, et al. 9
A. The NRDC’s Petition
1. Standing.
Before we can address the merits of the NRDC’s argu-
ments, however, we must first determine whether the
parties have standing to sue, an issue raised by the Builders
Group, but one this court must in any event, determine in
7
the first instance. See Heartwood, Inc. v. United States Forest
Serv., 230 F.3d 947, 951 (7th Cir. 2000) (“As always, before
the court may consider the merits of a case, we must
determine whether Plaintiffs have presented a justiciable
claim.”).
Section 509(b)(1)(F) of the CWA authorizes any “inter-
ested person” to obtain review of an EPA action in a Circuit
Court of Appeals. 33 U.S.C. § 1369(b)(1)(F). To qualify as
an “interested person” under § 509(b)(1)(F), a party, at a
minimum, must have Article III standing. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992) (hereinafter Lujan II).
When a plaintiff is an association, the association has Article
III standing to represent the interests of its members if the
individuals have standing in their own right; the interests
represented are germane to the association’s purpose; and
the relief sought does not require the participation of the
individual members. Hunt v. Wash. State Apple Adv. Comm’n,
432 U.S. 333, 343 (1977). See, e.g., Sierra Club v. Marita, 46
F.3d 606, 611-12 (7th Cir. 1995) (holding that “Sierra Club
7
The NRDC claims that it need not establish standing unless or
until it is challenged. However, this court admonished litigants
in Rhodes v. Johnson, 153 F.3d 785, 787 (7th Cir. 1998), to “be
mindful of our obligation to satisfy ourselves of our jurisdiction
and when, in cases like this, standing is an obvious issue, . . . they
[should] cite to the relevant parts of the record to avoid wasting
judicial time and resources.”
10 Nos. 03-3277, et al.
may maintain standing on behalf of its members”). Plain-
tiffs, as the parties invoking federal jurisdiction, have the
burden of proof and persuasion as to the existence of
standing. Lujan II, 504 U.S. at 561.
At oral argument, we directed the NRDC to file a supple-
mental brief addressing whether it satisfied these require-
ments. In its supplemental brief, the NRDC asserts that it has
standing to sue on behalf of its members as the interests
involved are germane to the association’s purpose, and the
relief sought does not require the participation of individual
members. No one takes issue with those propositions. The
only real question is whether the individual members would
have standing to sue in their own right. The NRDC claims
that it has identified three members who have standing in
their own right by virtue of living near and making use of
“water bodies that receive storm water discharges autho-
rized” by the General Permit. To determine whether this is
sufficient, we turn then to the requirements for individual
standing in general and, specifically, standing in an environ-
mental case.
Generally, to establish standing a petitioner must dem-
onstrate an injury in fact; a causal link between the injury
and the challenged action; and redressability through a
favorable court decision. Id. at 560-61; see also Area Transp.,
Inc. v. Ettinger, 219 F.3d 671, 672 (7th Cir. 2000). However,
when, as here, “a plaintiff’s asserted injury arises from the
government’s allegedly unlawful regulation (or lack of reg-
ulation) of someone else, much more is needed.” Lujan II, 504
U.S. at 562 (emphasis in original). As the Supreme Court
in Lujan II explained, that is because in such a situation,
“causation and redressability ordinarily hinge on the re-
sponse of the regulated (or regulable) third party to the gov-
ernment action or inaction—and perhaps on the response of
others as well.” Id. Thus, the plaintiff must “adduce facts
Nos. 03-3277, et al. 11
showing that those choices have been, or will be, made in
such manner as to produce causation and permit
redressability of injury.” Id. Accordingly, as Lujan II ex-
plained, “when the plaintiff is not himself the object of the
government action or inaction he challenges, standing is not
precluded, but it is ordinarily substantially more difficult to
establish.” Id. (internal quotations omitted).
Notwithstanding this difficult standard, the NRDC main-
tains that it has standing to challenge the General Permit
because three of its members use various bodies of water
which are polluted and that the pollution lessens their
enjoyment and use of the water bodies. The NRDC asserts
that that is enough to establish environmental standing,
citing numerous environmental cases holding that such an
interest is sufficient.
The NRDC is correct that injury to recreational or aes-
thetic interests constitutes a cognizable injury for purposes
of standing. See Friends of the Earth, Inc. v. Laidlaw, 528 U.S.
167, 183 (2000) (stating that injury to aesthetic and recre-
ational values constitutes sufficient injury for standing);
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 886 (1990) (herein-
after Lujan I) (“We have no doubt that ‘recreational use and
aesthetic enjoyment’ are among the sorts of interests those
statutes were specifically designed to protect.”). However,
to establish standing, the NRDC must establish not just
“ ‘injury in fact’—an invasion of a legally protected interest
which is (a) concrete and particularized,’ ” but also that
there is “a causal connection between the injury and the
conduct complained of . . . .” Lujan II, 504 U.S. at 560. In
other words, “the injury has to be ‘fairly . . . trace[able] to
the challenged action of the defendant, and not . . . th[e]
result [of] the independent action of some third party not
before the court.” Id.
12 Nos. 03-3277, et al.
Simply put, the NRDC must tie the asserted injury,
namely its members’ reduced aesthetic and recreational
enjoyment, to the challenged conduct, namely the EPA’s
issuance of the General Permit. The NRDC asserts its mem-
bers “will be directly affected by the General Permit,” as it
“has members in each of the states in which construction
activities will be regulated by the General Permit,” and that
its “members swim and engage in other recreational activ-
ities in water bodies directly affected by pollution from
construction activities subject to the General Permit.” These
contentions, however, fail to establish the requisite casual
connections for standing for numerous reasons.
Initially, we note that the NRDC fails to adduce specific
facts in its proffered affidavits to support its claim that the
water bodies are “directly affected by pollution from con-
struction activities subject to the General Permit.” Rather, in
the three affidavits presented in the NRDC’s reply brief to
establish standing, the members merely repeat the conclu-
sory allegations of the NRDC’s opening brief. For instance,
one affiant stated: “In recent years, there has been much
construction activity near the waters that I use in Idaho. . . . I
believe that that [sic] these construction projects contribute
to sediment, turbidity and water quality problems in the
Boise River, Snake River, and Clearwater River.” However,
the affidavit fails to identify any specific construction
project authorized under the General Permit to discharge
into these bodies of water, and more significantly it fails
to present evidence that discharges of sediment from the
sites are actually occurring. Similarly, a second affidavit
merely states: “The construction that has been occurring
in and around Taos has negatively affected water quality
and harmed me and my family in the process.” Again, this
conclusory statement does not identify any specific con-
struction sites authorized under the General Permit and fails
to present evidence of any discharges into the water bodies
Nos. 03-3277, et al. 13
at issue. Finally, although the third affidavit identifies a
construction project approved under the EPA’s General
Permit, that affidavit does not specify any discharge from
8
that project into the water body at issue. As petitioning
party, the NRDC bears the burden of proof, Lujan II, 504
U.S. at 561, and because it has sought a ruling as a matter of
law, it must present record evidence establishing standing.
Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002).
Repeating the conclusory allegations of a complaint is not
enough. Lujan I, 497 U.S. at 888. Yet that is what the NRDC
has done, opining that the construction activities result in
pollution, without citing any supporting evidence.
The NRDC seeks to overcome the deficiencies in the
affidavits by citing in its Supplemental Brief to several NOIs
filed with the EPA, including some from construction
companies providing a notice of an intent to discharge
under the General Permit in the bodies of water used by
the three affiants. There are several problems with this
approach. First, the water bodies at issue span, in some
cases, hundreds of miles. For instance, the Rio Grande runs
the entire length of New Mexico, and pointing to an NOI
seeking coverage under the General Permit for discharges
into the Rio Grande does not establish an injury to the por-
tion of the river used by the affiant. This is fatal, as “aver-
ments which state only that one of respondent’s members
uses unspecified portions of an immense tract of territory,
on some portions of which [regulated] . . . activity has
occurred or probably will occur by virtue of the governmen-
8
Ironically, while the affiants conclusorily declare that dis-
charges from the construction sites pollute the water bodies at
issue, the NRDC’s acknowledgment in its brief that it cannot
“determine which point-sources might be responsible for harmful
discharges” calls into question the veracity of these declarations.
14 Nos. 03-3277, et al.
tal action, are insufficient to show that the member’s rights
have been adversely affected or aggrieved by Government
action.” Lujan I, 497 U.S. at 889. Moreover, to satisfy the
“fairly traceable” causation requirement, there must be a
distinction between “the plaintiffs who lie within the
discharge zone of a polluter and those who are so far
downstream that their injuries cannot fairly be traced to that
defendant.” Friends of the Earth, Inc. v. Gaston Copper Recy.,
Corp., 204 F.3d 149, 162 (4th Cir. 2000). See also Lujan II, 504
U.S. at 565-66 (“[P]laintiffs claiming injury from environ-
mental damage must use the area affected by the challenged
activity and not an area roughly ‘in the vicinity’ of it.”).
Thus, for instance, the Fifth Circuit held in Friends of the
Earth, Inc. v. Crown Cent. Petroleum Corp., 95 F.3d 358, 360-61
(5th Cir. 1996), that an eighteen-mile distance is “too large
to infer causation.” Likewise here, where the specific water
bodies used by NRDC members run a great distance,
pointing to NOIs that authorize discharges in those water
bodies is insufficient to establish the discharges are within
the zone to infer causation. See Lujan I, 497 U.S. at 887-89.
Second, the NOIs relied upon by the NRDC do not
establish that any discharge has actually occurred into the
water bodies. See, e.g., 69 Fed. Reg. 76743, 76746 (Dec. 22,
2004) (In discussing the General Permit, the EPA char-
acterizes the CWA and its implementing regulations as
requiring “certain potential dischargers to seek permit cover-
age.”). Nor do any of the affidavits filed present evidence of
the discharge of pollutants. “[I]t will not do to ‘presume’ the
missing facts because without them the affidavits would not
establish the injury that they generally allege.” Lujan I, 497
U.S. at 889. Additionally, even if discharges were occurring
into the water bodies, the NRDC must still trace the alleged
polluted conditions of the water bodies to the discharges.
Although a plaintiff need not establish such a nexus with
Nos. 03-3277, et al. 15
“scientific certainty,” Gaston Copper, 204 F.3d at 161, a
plaintiff must show “that a defendant discharges a pollutant
[which] causes or contributes to the kinds of injuries alleged
in the specific geographic area of concern.” Id. (internal
citations omitted). In Gaston Copper, the Fourth Circuit noted
that “[w]here a plaintiff has pointed to a polluting source as
the seed of his injury, and the owner of the polluting source
has supplied no alternative culprit, the ‘fairly traceable’
requirement can be said to be fairly met.” Id. at 162. Here,
however, the NRDC failed to establish “any seed of [its]
injury.” The NRDC also ignores the existing polluted
condition of at least three of the water bodies, the Anacostia
and Potomac Rivers, and Rock Creek, in Washington D.C.
This condition is in large part caused by the “estimated 3.2
billion gallons of untreated raw sewage that flows into the
rivers each year from the area’s sewer systems.” Depart-
ment of Justice Press Release, U.S. - WASA Sewage Settle-
ment to Clean up D.C.’s Anacostia River, December 16,
2004.
Finally, and most significantly, pointing to NOIs filed
with the EPA is insufficient because for the NRDC to have
standing to sue, it is not enough to assert that water bodies
used by its members receive storm water discharges au-
thorized by the General Permit. Rather, the NRDC must
show that the discharge caused the complained-of legally
cognizable aesthetic or recreational injury. Establishing a
discharge does not also establish an injury. That is because
the EPA “may issue permits authorizing the discharge
of pollutants in accordance with specified conditions,”
and such authorized discharges are not illegal. Gwaltney
of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S.
49, 52 (1987) (citing 33 U.S.C. § 1342). Therefore, to establish
causation and, in turn, standing, the NRDC must establish
16 Nos. 03-3277, et al.
that the discharge violated the General Permit or the terms
of the CWA. The NRDC has established neither.
This distinguishes our case from those relied upon by the
NRDC wherein the courts found environmental standing, as
those cases alleged aesthetic and recreational injuries caused
by violations of a permit. For instance, in Laidlaw the
plaintiffs sued for injunctive relief for alleged violations of
an NPDES permit by a hazardous waste incinerator. The
Supreme Court found standing in Laidlaw, reasoning: “[I]t
is undisputed that Laidlaw’s unlawful conduct—discharg-
ing pollutants in excess of permit limits—was occurring at
the time the complaint was filed.” Laidlaw, 528 U.S. at 184.
Similarly, in Ecological Rights Found. v. Pac. Lumber Co., 230
F.3d 1141, 1146 (9th Cir. 2000), the Ninth Circuit held the
plaintiffs had standing because they alleged that their indi-
vidual members used the water bodies at issue and that
their aesthetic and recreational interests were impaired by
the alleged violations of the 1992 General Permit. Likewise
in Gaston Copper, 204 F.3d at 156, the Fourth Circuit held
that the plaintiff had standing to sue because the plaintiff
was “a property owner whose lake lies in the path of Gaston
Copper’s toxic chemical discharge. He and his family swim
and fish in this lake. [Plaintiff] testified that he and his
family swim less in and eat less fish from the lake because
of his fears of pollution from Gaston Copper’s permit
exceedances.” (emphasis added). The court in Gaston contin-
ued: “Plaintiff here established the required nexus for the
alleged injury by presenting evidence consisting of reports
show[ing] over 500 violations of the company’s discharge
limits, including unlawful releases of cadmium, copper,
iron, lead and zinc, as well as pH violations.” Id. at 157
(internal quotation omitted).
Conversely, in this case, the NRDC does not assert any
violation of the General Permit. The NRDC responds that it
Nos. 03-3277, et al. 17
need not establish a violation of the General Permit because
it is attacking the General Permit scheme and not a specific
discharge. However, to attack the General Permit scheme,
the NRDC must still establish standing, which means the
petitioner must demonstrate its members suffered an injury
from the General Permit scheme. Yet the only potential
injury to its members is one that could occur in the future
should a contractor violate the terms of the General Permit.
Moreover, it would be illogical to hold that a petitioner
has standing to challenge a General Permit scheme because
a discharger may in the future violate the terms of the per-
mit, where the Supreme Court has held that a citizen lacks
standing to sue for actual violations of a permit where the
discharger corrects the violation within the sixty-day notice
9
period. See Atlantic States Legal Found., Inc. v. Stroh Die
Casting Co., 116 F.3d 814, 825 (7th Cir. 1997) (“In Gwaltney,
the Supreme Court set forth a test for standing under the
Act: a plaintiff must make a ‘good-faith allegation of con-
tinuous or intermittent violation.’ 484 U.S. at 64, 108 S.Ct. at
385. This means that a citizen plaintiff does not have
standing to maintain a suit for civil penalties for wholly past
violations of the act.”) (citing Gwaltney, 484 U.S. at 54).
Allowing an attack on the General Permit scheme where
no actual violation has occurred also defeats the goal of the
regulatory provisions requiring that the notice of a permit
violation provide the alleged discharger with specific details
so the discharger knows what it is doing wrong and what
9
Section 1365(b)(1)(A) authorizes private suits for violations of
the terms of an existing NPDES permit, but “[c]itizens may not
bring suit, however, unless and until they have given 60 days’
notice of their intent to sue to the alleged violator (as well as the
Administrator and the state)”. Atlantic States, 116 F.3d at 818
(citing 33 U.S.C. § 1365(b)(1)(A)).
18 Nos. 03-3277, et al.
corrective actions will avert a lawsuit. Id. Where there is no
alleged violation, the dischargers have no opportunity to
take corrective action, as Congress and the EPA desired.
Gwaltney, 484 U.S. at 60 (stating that the sixty-day notice
requirement provides the alleged violator “an opportunity
to bring itself into compliance with the Act and thus like-
wise render unnecessary a citizen suit”). Moreover, allow-
ing such suits would conflict with Congress’ intent that “the
great volume of enforcement actions be brought by the
State,” and with Congress’ design that citizen suits be
brought only “if the Federal, State, and local agencies fail to
exercise their enforcement responsibility.” Ailor v. City of
Maynardville, Tenn., 368 F.3d 587, 598 (6th Cir. 2004) (quot-
ing S. Rep. No. 92-414, p.64 (1971)).
Of course, that does not mean that the NRDC would be
without standing to challenge a discharge that complies
with the terms of the General Permit but violates the terms
of the CWA. Such a discharge would be illegal, whether or
not the EPA authorized it. Some language from the NRDC’s
briefs could be read as presenting such an argument. For
instance, in its reply brief, the NRDC frames the issue as
whether the EPA has “authority to issue a General Permit
that authorizes discharges that do not comply with the
law.” However, the NRDC has presented no evidence of a
discharge authorized by the General Permit that violates the
terms of the CWA. The NRDC’s other briefs also demon-
strate that that is not the NRDC’s real contention. Rather,
the NRDC’s complaint is that the General Permit scheme
allows for the possibility that a contractor may violate the
terms of the General Permit. But to have standing to present
such a claim premised on a third party’s action or inaction,
the NRDC must adduce facts showing that “those choices
have been, or will be, made in such manner as to produce
causation and permit redressability of injury.” Lujan II, 504
Nos. 03-3277, et al. 19
U.S. at 562. This it has failed to do. Therefore, it lacks
standing to challenge the substantive provisions of the
General Permit.
Because the NRDC has failed to establish standing to
present its substantive challenges to the General Permit, this
court lacks jurisdiction to consider the NRDC’s objections to
the General Permit scheme. Thus, its reliance on decisions
from the Ninth and Second Circuits addressing the validity
of other General Permit schemes is misplaced. Specifically,
the NRDC cites the Ninth Circuit’s decision in Environmental
10
Defense Center, Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003), and
the Second Circuit’s decision in Waterkeeper Alliance, Inc. v.
11
EPA, 399 F.3d 486 (2d Cir. 2005), in support of its challenge
to the General Permit scheme. However, neither the Ninth
nor the Second Circuit addressed the initial question of
standing, at least as to whether environmental plaintiffs not
subject to the regulation have standing to challenge the
12
general permit. Without standing, this court cannot reach
10
In Envirnomental Defense Center, the Ninth Circuit considered a
general permit authorizing municipal storm water discharges.
344 F.3d 832.
11
In Waterkeeper, the Second Circuit considered the validity of a
general permit authorizing discharges by Concentrated Animal
Feeding Operations. 399 F.3d 486.
12
The Second Circuit did not address the issue of standing at all.
Waterkeeper Alliance, 399 F.3d 486. The Ninth Circuit addressed
standing in considering challenges to the general permit pre-
sented by the industries subject to the permit requirements, and
it concluded those petitioners lacked standing. Environmental
Defense, 344 F.3d at 863, 867-68. The Ninth Circuit, however,
did not mention the question of whether the environmental
petitioners had standing. The Ninth Circuit did hold that the en-
(continued...)
20 Nos. 03-3277, et al.
the merits of the petitioner’s substantive challenges to the
General Permit. In the Matter of Memorial Estates, Inc., 950
F.2d 1364, 1369 (7th Cir. 1991).
Whether the NRDC has standing to present procedural
challenges to the General Permit, namely by attacking the
General Permit’s failure to mandate public availability of
the NOI and SWPPP, and its failure to provide the public
with the opportunity for a public hearing on the NOI and
the SWPPP, however, is a separate question. Here the
NRDC seeks to vindicate procedural rights established by
statute to participate in the process. “The person who has
been accorded a procedural right to protect his concrete in-
terests can assert that right without meeting all the normal
standards for redressability and immediacy.” Lujan II, 504
U.S. at 572 n.7. Lujan II illustrated this point, noting that
individuals living adjacent to a site for proposed construc-
tion have standing to challenge the licensing agency’s
failure to prepare an environmental impact statement, even
though they “cannot establish with any certainty that the
12
(...continued)
vironmental petitioners’ claim was ripe, noting that “we are
addressing whether the EPA, in promulgating the Phase II Rule,
has accomplished the substantive controls for municipal storm-
water that Congress mandated in § 402(p) of the Clean Water
Act, . . . [and that] question is ripe for review.” Id. at 852 n.30.
Although ripeness and standing overlap in some respects, in
passing on ripeness, as the above excerpt demonstrates, the Ninth
Circuit failed to consider whether the Phase II Rule at issue in
that case caused an actual injury to the environmental petitioners.
Id. at 852 n.30. That is significant because, as the above analysis
demonstrates, the NRDC lacks standing to challenge the General
Permit at issue in this case because it failed to present sufficient
evidence that the General Permit caused a legally cognizable
injury to any of its members.
Nos. 03-3277, et al. 21
statement will cause the license to be withheld or altered
and even though the dam will not be completed for many
years.” Id. This court also recognized standing to vindicate
a procedural right in Sierra Club v. Marita, 46 F.3d 606 (7th
Cir. 1995), holding that the plaintiffs had standing to chal-
lenge a forest management plan because “[o]nce the plan
has passed administrative review, the procedural injury has
been inflicted, [and] [u]nless a plaintiff’s purported interest
in the matter is wholly speculative, waiting any longer to
address that injury makes little sense.” Id. at 612.
So too here: Even though the NRDC members cannot
establish the immediacy of an injury from construction
activities operating under the General Permit, the NRDC
nonetheless has standing to challenge the EPA’s failure to
mandate public availability of the NOI and the SWPPP, and
its failure to provide the opportunity for a public hearing
related to the NOI and the SWPPP. This is because the
NRDC has presented evidence that its members use water
bodies that may receive discharges authorized by the
General Permit and the three affiants stated that they would
participate in the decision making process if allowed.
This contrasts with the Lujan II case in which, after re-
affirming the principle of procedural standing, the Supreme
Court nonetheless held that the plaintiffs lacked standing to
present such a challenge because they failed to satisfactorily
establish their future use of the property affected by the
alleged procedural violation. Lujan II, 504 U.S. at 564, 572-
73. Conversely, here, the NRDC members stated that they
regularly use the water bodies. Accordingly, the NRDC has
procedural standing. See Rhodes, 153 F.3d at 787 (holding
that the plaintiffs have standing because they alleged they
used the forest at issue and that the Forest Service’s decision
would diminish this use and enjoyment, and “that the
defendant’s failure to permit them to participate in the
22 Nos. 03-3277, et al.
public review of the decision is causally connected to their
harm”); Heartwood, 230 F.3d at 952 (holding that under
Rhodes, plaintiffs had standing to challenge the Forest
Service’s exclusion of certain classes of actions from proce-
dural safeguards designed to determine the environmental
impact of those actions, and that plaintiffs had an informa-
tional injury justifying standing as well, where the alleged
violation prevented them from commenting on or challeng-
ing the agency’s decision).
2. Public notice and hearing.
Having concluded that the NRDC has standing to pursue
its procedural injury claims, we turn to the merits of those
claims. As noted above, the NRDC presents two procedural
challenges: the NRDC challenges the General Permit’s fail-
ure to mandate public availability of the NOIs and the
SWPPP, and its failure to provide the public with the op-
portunity for a public hearing on the NOI and the SWPPP.
In support of its position, the NRDC cites 33 U.S.C.
§§ 1342(j) and 1342(1)(a).
Section 1342(j) of the CWA provides that “[a] copy of each
permit application and each permit issued under
this section shall be available to the public. Such permit
application or permit, or portion thereof, shall further be
available on request for the purpose of reproduction.”
Section 1342(a)(1) authorizes the EPA “after opportunity for
public hearing, [to] issue a permit for the discharge of any
pollutant, or combination of pollutants. . . .” The NRDC
claims this statutory language requires the EPA to make the
NOIs and SWPPPs publicly available and to provide for the
opportunity for a public hearing. The EPA responds that
Sections 1342(j) and 1342(a)(1) do not apply to the NOIs and
Nos. 03-3277, et al. 23
SWPPPs because NOIs and SWPPPs are neither permits nor
permit applications.
This presents an issue of statutory interpretation, which is
governed by the two-step test set forth in Chevron U.S.A.,
Inc. v. National Resource Defense Council, Inc., 467 U.S. 837,
842-43 (1984). Under the first step, a reviewing court must
determine “whether Congress has directly spoken to the
precise question at issue.” Id. at 842. If Congress’ intent is
clear from the statutory language, a court must “give effect
to the unambiguously expressed intent of Congress.” Id. at
842-43. However, if the statute is “silent or ambiguous with
respect to the specific issue,” the court must decide whether
the Agency’s interpretation is based on a permissible con-
struction of the statute. Id. at 843. To uphold an agency’s
interpretation of a statute, this court need only find the
interpretation permissible. Id.
The statutory language quoted above speaks only to “per-
mits” and “permit applications,” and not NOIs or SWPPPs.
Thus, Congress has not spoken directly to the precise
question at issue, or at best, it is ambiguous as to whether
Congress intended to treat NOIs and SWPPPs as permits or
permit applications for purposes of Sections 1342(j) and
1342(a)(1). Accordingly, under Chevron, we must decide
whether the EPA gave a permissible construction to the
term “permit applications” and “permits.”
Maintaining that NOIs and SWPPPs do not constitute
“permit applications” or “permits” for purposes of Sections
1342(j) and 1342(a)(1), the EPA stresses that the General
Permit scheme does not make use of a permit application.
Rather, general permits are proposed through a notice in the
Federal Register, and the EPA solicits and receives public
comments on the proposed general permits. It is at that time
that the public has the opportunity to request a public
24 Nos. 03-3277, et al.
hearing. Once a general permit issues, a discharger wishing
to operate under the general permit must comply with the
previously established permit terms. Therefore, according
to the EPA, there is no need for additional public comment
or a notice period. Moreover, the EPA maintains that
requiring “an additional public hearing on each individual
NOI and SWPPP would eviscerate the administrative
efficiency inherent in the general permitting concept,” in
effect making the general permit scheme no different from
the process for obtaining individual permits. This would be
inconsistent with Congress’ intent to allow for the use of
general permits. See Pub. L. 102-240 (Dec. 18, 1991) (“The
Administrator shall issue final regulations with respect to
general permits for storm water discharges associated with
industrial activity on or before Feb. 1, 1992.”). These ratio-
nales are eminently reasonable. Therefore, we conclude that
the EPA’s interpretation of the terms “permit application”
and “permit” as not including NOIs and SWPPPs is a
permissible construction. Under the EPA’s interpretation,
then, NOIs and SWPPPs are not subject to the requirements
of Sections 1342(j) and 1342(a)(1), and, accordingly, the EPA
did not violate those sections of the CWA in issuing the
13
General Permit at issue.
13
The Ninth Circuit’s majority opinion in Environmental Defense
Center found under step one of Chevron that Congress clearly
intended NOIs to be subject to the public availability and public
hearing requirements because NOIs are the functional equivalent
of a permit application. 344 F.3d at 856. However, as discussed
above, the statutory language at issue addresses only “permit
applications” and fails to include any mention of NOIs, SWPPPs,
or other so-called “functional equivalents.” Thus, as the dissent
in Environmental Defense Center concludes, the majority erred in
concluding that Congress clearly spoke to the issue. Id. at 880-81
(Tallman, J., dissenting). Because this opinion creates a split
(continued...)
Nos. 03-3277, et al. 25
3. Endangered Species Act.
Finally, the NRDC claims that the General Permit violates
Section 7 of the Endangered Species Act (“ESA”). 16 U.S.C.
§§ 1531, et seq. Section 7 requires each federal agency to
ensure that any action authorized, funded, or carried out by
that agency “is not likely to jeopardize the continued
existence of any endangered species or threatened species or
result in the destruction or adverse modification” of des-
ignated critical habitat. 16 U.S.C. § 1536(a)(2). The relevant
regulations further require any agency proposing an action
to pursue either informal or formal consultation with the
Fish and Wildlife Service and/or the National Marine
Fisheries Service (together “Service”) if the proposed federal
action “may affect” a threatened or endangered species. 50
C.F.R. § 402.14(a).
The NRDC claims that the General Permit violates Section
7 because the EPA does not consult with the Service upon
receipt of an NOI and the completion of a SWPPP. Again,
we begin by considering the NRDC’s standing. As above,
the NRDC’s claimed injury here is a procedural injury—the
lack of statutorily required consultation. Therefore, the
standing requirements are more relaxed. In this case, the
NRDC alleged that some of its members use bodies of water
which endangered species inhabit, and that pollution
threatens the proliferation of these species. For at least one
of the members, a claimed harm exists: Affiant Justin Hayes
claims his use and enjoyment of the water bodies is dimin-
13
(...continued)
between the circuits, we circulated it in advance of publication to
the full court pursuant to Seventh Circuit Rule 40(e). No judge in
active service voted to hear the case en banc. (Chief Judge Flaum
and Judge Ripple did not participate in consideration of whether
to hear the case en banc.)
26 Nos. 03-3277, et al.
ished because the polluted conditions prevent endangered
fish species from flourishing, which means that he cannot
keep the fish he catches, but must instead release them back
into the water. Given that the claimed harm is a procedural
injury stemming from the EPA’s failure to consult with the
Service, we conclude the NRDC has standing to challenge
the lack of consultation. See supra at 20-22.
However, on the merits the NRDC loses because Section 7
only requires consultation with the Service whenever a
federal action “may affect” a threatened or endangered
species. 16 U.S.C. § 1536(a)(2). A private actor, however,
files an NOI and creates a SWPPP, and neither the filing of
an NOI nor the creation of a SWPPP by a private contractor
requires any federal action. Without a federal action, the
consultation requirements of Section 7 are not triggered.
Therefore, the EPA need not engage in consultation with the
Service every time an NOI is filed or a SWPPP is prepared.
Consultation was required earlier, when the EPA issued the
General Permit, but at that time the EPA undertook and
concluded informal consultation with the Service on the
issuance of the General Permit. Specifically, the EPA and the
Service developed a detailed procedure designed to accom-
modate listed species and critical habitats and the Service
agreed that the issuance of the General Permit was not
likely to adversely affect those species and habitats. Accord-
ingly, the EPA complied with the ESA in issuing the
General Permit. See 50 C.F.R. § 402.13 (explaining that the
consultation requirement is satisfied if during the informal
consultation the Service concurs in writing that the action
“is not likely to adversely affect” a listed species).
B. Oil and Gas Petitioners
Nos. 03-3277, et al. 27
The Oil and Gas Petitioners also challenge the terms of the
General Permit, taking issue with various definitions and
provisions, arguing in essence that the EPA acted arbitrarily
and capriciously by failing to take into account the differ-
ences in construction activities related to oil and gas explo-
ration and conventional residential and commercial ac-
tivities. However, as noted above, the Oil and Gas Petition-
ers also maintain that the EPA lacks the authority to require
a permit for construction activities related to oil and gas
exploration. That question is currently pending before the
Fifth Circuit. The Oil and Gas Petitioners acknowledge that
should the Fifth Circuit rule in their favor, their claims
would be moot. We agree. Accordingly, we stay consider-
ation of the Oil and Gas Petition until the Fifth Circuit
determines the initial question of whether the Oil and Gas
Petitioners are subject to the permitting requirements of the
CWA. See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)
(stating that “the power to stay proceedings is incidental to
the power inherent in every court to control the disposition
of the causes on its docket with economy of time and effort
for itself, for counsel, and for litigants); Aetna State Bank v.
Altheimer, 430 F.2d 750, 755 (7th Cir. 1970) (“A stay pending
the outcome of litigation in another court between the same
parties, involving the same or controlling issues is an
acceptable means of avoiding unnecessary duplication of
judicial machinery.”).
III.
In sum, we conclude that the NRDC lacks standing to
challenge the terms of the General Permit because it has
failed to show any of its members have standing to sue
in their own right; the NRDC failed to present evidence
establishing the General Permit caused an actual injury to
the aesthetic or recreational interests of its members. How-
28 Nos. 03-3277, et al.
ever, the NRDC has standing to present its procedural
challenges to the General Permit, but those challenges fail
because NOIs and SWPPPS are not permits or permit appli-
cations and therefore the CWA’s public notice and hearing
requirements do not apply. Likewise, while the NRDC has
standing to present a procedural ESA claim, that claim fails
on the merits because the filing of an NOI and the creation
of a SWPPP by a private actor does not constitute “federal
action,” and, therefore, the consultation requirements of the
ESA are not implicated. Accordingly, we DENY the NRDC’s
PETITION FOR REVIEW, IN PART, and DISMISS IT IN PART FOR
LACK OF STANDING. We further STAY consideration of the Oil
and Gas Petitioners’ petition pending a decision from the
Fifth Circuit as to whether the permit requirements of the
CWA apply to the Oil and Gas Petitioners.
Nos. 03-3277, et al. 29
Appendix:
The Act: The Clean Water Act
BMP: Best Management Practices
Builder Groups: National Association of Home Builders,
the Wisconsin Builders Association, and
the Associated General Contractors of
America
CWA: The Clean Water Act
EPA: The Environmental Protection Agency
ESA: Endangered Species Act
General Permit: Final National Pollutant Discharge
Elimination System General Permit for
Storm Water Discharges From
Construction Activities
NRDC: Natural Resources Defense Council
NOI: Notice of Intent
NPDES: The National Pollutant Discharge
Elimination System
Oil and G a s Texas Independent Producers and Roy-
Petitioners: alty Owners Assocation; Independent
Petroleum Association of America, U.S.
Oil and Gas Association, Texas Alliance
of Energy Producers, Louisiana Oil and
Gas Associations, Independent Gas and
Gas Association of Pennsylvania, Ohio
Oil and Gas Association, and Oklahoma
Independent Petroleum Association
SWPPP:
30 Nos. 03-3277, et al.
Storm Water Pol-
lution Prevention
Plan
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
Nos. 03-3277, et al. 31
USCA-02-C-0072—6-13-05